Evidence - The Rule Against Hearsay In Civil And Criminal Cases

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Hearsay evidence

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Hearsay evidence is evidence of a non-testimonial statement, which evidence is adduced for the purpose of proving that the statement is true.

The rule against hearsay has been formulated as follows in the classic work, "Cross on Evidence":-

"An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted".

This formulation was approved in the House of Lords in R v Sharpe [1998]

Hearsay evidence ordinarily takes the form of (i) the testimony of the person who made the
statement, (ii) the testimony of a person who heard or saw the statement being made, (iii) an
item on which the statement was written, or (iv) an electronic recording of the statement.

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Non-testimonial Statement

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A "non-testimonial statement" is a statement that is not made under oath or on solemn affirmation at trial.

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Cullen v Clarke [1963]

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The conduct must be relevant. It was held that evidence of a statement made by a person who had interviewed the plaintiff for a job explaining why he would not hire him was admissible under this res gestae exception. The plaintiff was seeking compensation for loss of earnings as a result of injuries he had received at work.

The Supreme Court held that as the act of refusing work was relevant to an issue raised at trial, viz. the fact that the plaintiff was unable to obtain work, the statement accompanying and explaining that act was admissible under this res gestae exception .

SC, Kingsmill Moore J:

"There is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness. There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissable to prove the truth of the facts which they assert; the reasons being that the truth of the words cannot be tested by cross examination and has not the sanctity of an oath. This is the rule known as the rule against hearsay"

" ... the utterance of the words may itself be a relevant fact, quite apart from the truth or falsity of anything asserted by the words spoken. To prove, by the evidence of a witness who heard the words, that they were spoken, is direct evidence, and in no way encroaches on the general rule against hearsay''.

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Subramaniam v Public Prosecutor [1956]

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The Malaysian accused was charged with the unlawful possession of ammunition. He claimed that terrorists had captured him and that he had acted under duress. He tried to introduce evidence of his capture and what the terrorists had said to him, which the trial judge ruled inadmissible. This was overturned on appeal.

Mr. LMD de Silva for the Privy Council:

"[i]t is hearsay and inadmissible when the object of the evidence is to establish
the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made."

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Ratten v R. [1972]

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Court of Appeal, Lord Wilberforce:

"[w]ords spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on "testimonially", ie, as establishing some fact narrated by [the] words".

Relaxed the Res Gestae exception:

The test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. ...

But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can saftly be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression "res gestae" may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges' rulings.

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The Rule against hearsay Evidence in civil Trials

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The Law Reform Commission states in its Report on The Rule against Hearsay in Civil Cases (Law Reform Commission, The Rule against Hearsay in Civil Cases (LRC 25-1990)) that "... in civil cases, judges often discourage counsel from pressing points on hearsay or insist on hearing an item of hearsay evidence de bene esse".

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Rationale for the Rule against Hearsay Evidence

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Hearsay evidence is unreliable, as:

(i) the person who made the statement was not testifying under oath or on solemn affirmation when he made it;

(ii) the person who made the statement was not subjected to the rigours of cross-examination immediately after he made it; and

(iii) the jury did not have the advantage of assessing the demeanour and, in tum, credibility of the person who made the statement when he made it.

As the English Law Commission states in its Report on Evidence in Criminal Proceedings: Hearsay and related topics:

Hearsay often carries the risk of errors appearing as the evidence is repeated by different people. The person who reports the words of another may have misheard them or misinterpreted them. This risk is all the greater if the reporter had a preconceived idea of what the other person was going to say. The more remote the source, the greater the likelihood of errors in transmission.

In essence, the rule is recognition of the importance of all evidence being adduced at trial.

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Teper v R [1952]

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Court of Appeal, Lord Normand:

"[t]he rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost".

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Sparks v R [1964]

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The three-year old complainant, who was too young to testify, told her mother shortly after the incident that the person who molested her was a "coloured boy". The Privy Council held that the statement was inadmissible, in spite of the fact that it probably would have exculpated Sparks, a white American Air Force staff sergeant.

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Criticisms of the Rule Against Hearsay

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English Law Commission Consultation Paper: Evidence in Criminal Proceedings: Hearsay and Related Topics (1995):

"There is no unifying principle behind the rule and this gives rise to anomalies and confusion. Court time is wasted because of the lack of clarity and complicated nature of the rule. Cogent evidence may be kept from the court, however much it may exonerate or incriminate the accused, because the fact-finders are not trusted to treat untested evidence with the caution it deserves, but if hearsay is admitted there is nothing to
prevent them from committing on it alone. Witnesses may be put off by interruptions in the course of their oral evidence. Whether evidence will be let in or not is unpredictable because of the reliance on judicial discretion."

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Myers v DPP [1965]

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There, it was alleged that the accused had stolen cars before reselling them with the logbooks of older cars. The prosecution sought to adduce the records of the factory in which the cars had been manufactured, as they contained the number which had been stamped onto the engine of every car. To allow in such evidence would enable the prosecution to match up the numbers on the cars which had been stolen with those the accused had tried to sell.

The Court of Appeal upheld the admission of the evidence, as it was inherently probable that the evidence was "correct rather than incorrect".

However, the House of Lords held that the records constituted hearsay evidence, as they were non-testimonial written statements made by unidentifiable workers in the factory. In so holding, the House was of the view that the integrity of the hearsay rule had to be maintained and that although its application may seem, per Lord Reid, "absurdly technical" in some cases, it was not its function to relax its application. Rather, the provision of exceptions to the hearsay rule was a matter for parliament alone.

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Patel v Comptroller of Customs [1966]

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It was held that the words "Produce of Morrocco" on sacks of seed could not be admitted to prove the country of origin of the sacks.

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Chandrasekara v R [1937]

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The accused had been charged with murder. The accused drove oxen and had once been reprimanded for slapping a policeman's face. Shortly before her death, the deceased had made motions that the person who had cut her throat drove oxen. She had also pointed at a policeman and made motions to slap her face. This conduct caused a person to ask the victim whether or not the accused had cut her throat. The victim replied by nodding her head.

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Statement

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A statement for the purposes of the Rule may be:

1) Oral - Sparks v R [1964]

2) Written - Myers v DPP [1965], Patel v Comptroller of Customs [1966]

3) Made otherwise than orally or in writing - gestures, etc. - Chandrasekara v R [1937]

4) Implied - Wright d Doe v Tatham (1837), Teper v R [1952], R v Kearley [1992]

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Wright d Doe v Tatham (1837)

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the issue was whether or not a testator was mentally competent when he made his will. Letters that had been written to him contained statements like "you are blessed with health". Such statements implied that the testator was mentally competent.

Parke B said (at 385), "[t]hose letters may be considered in this respect to be on the same footing as if they had contained a direct and positive statement that he was competent. For this purpose they are mere hearsay evidence, statements of the writer, not on oath, of the truth of the matter in question".

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Teper v R [1952]

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The accused had been charged with maliciously and with intent to defraud setting fire to a shop in which he carried on the business of a dry goods store. His defence was based on an alibi. At trial, a policeman recounted the following incident, which occurred no less than 26 minutes after the fire had been started, and at some distance from the shop:

"I heard a woman's voice shouting "Your place burning and you going away from the fire"; immediately then a black car came from the direction of the fire, and in the car was a fair man resembling accused. I did not observe the number of the car. I could not see the fire from where I was standing."

The woman's statement implicitly asserted that the accused was fleeing from the scene of the crime shortly after the fire had been started. Accordingly, evidence of the statement, ie,
the policeman's testimony, would have undermined the accused's defence. It was held that the policeman's testimony was inadmissible, as it was in breach of the hearsay rule.

It was held further that this res gestae exception did not apply, Lord Normand saying (at 487):

... the rule {against hearsay evidence] admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestae. . .. It appears to rest ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle. Their Lordships will not attempt to arrive at a general formula, nor is it necessary to review all of the considerable number of cases cited in the argument. This, at least, may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement ....

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R v Kearley [1992]

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The House of Lords confirmed that the rule applies to implied statements.

During a search of the accused's flat, the police found drugs, but they were not of sufficient quantity as to give rise to an inference that the accused was selling drugs. During the search, the police answered the telephone 10 times and answered the door to seven people. Each of the callers asked to speak to the accused and was looking for drugs.

The prosecution sought to adduce the evidence of the callers as the logical implication of what the callers had said was that the accused was selling drugs out of his flat. Of course, the callers were not available to give evidence and so the question arose as to whether or not the policeman could testify as to what they said.

Although the House of Lords held that the evidence of the callers' belief, ie, that they could get drugs from the accused, was irrelevant, it also held that this evidence was hearsay. As the implication of the evidence was that the accused was selling drugs, and as this was an issue in dispute during the trial, this evidence was caught by the rule.

In reaching this decision, the House of Lords seemed very much concerned with avoiding the creation of an anomalous distinction between express statements and implied statements. As Lord Bridge said of the callers:

The speaker was impliedly asserting that he had been supplied by the defendant with drugs in the past. If the speaker had expressly said to the police officer that the defendant had supplied him with drugs in the past, this would clearly have been inadmissible as hearsay. When the only relevance of the words spoken lies in their implied assertion that the defendant is a supplier of drugs, must this equally be excluded as hearsay? This, I believe, is the central question on which this appeal turns.

Is a distinction to be drawn for the purposes of the hearsay rule between express and implied assertions? If the words coupled with any associated action of a person not called as a witness are relevant solely as impliedly asserting a relevant fact, may evidence of those words and associated actions be given notwithstanding that an express assertion by that person of the same fact would only have been admissible if he had been called as a witness? Unless we can answer that question in the affirmative, I think we are bound to answer the certified question in the negative ...

... the recent decision of your Lordships' House in Reg. v Blastland [1986] AC 41 clearly affirms the proposition that evidence of words spoken by a person not called as a witness which are said to assert a relevant fact by necessary implication are inadmissible as hearsay just as evidence of an express statement made by a speaker asserting the same fact would be.

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Criticisms of the Extension of the Rule Against Hearsay to Implied Statements

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The decisions in Wright d Doe v Tatham (1837) 7 and R v Kearley [1992] (HL) have been criticised on a number of grounds. In particular, it has been argued that to extend the hearsay rule to encompass implied assertions would be to widen it to a significant extent.

As the Scottish Law Commission has said in its Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com No. 149):

It appears to us that there is much to be said for the view that implied assertions are not hearsay. Since a person who is not deliberately making an assertion is seldom likely to be engaged in deception, at least one of the dangers associated with hearsay is generally absent. Again, every human utterance or action could be argued to be an.. implied assertion of something, including an assertion of the speaker's or actor's intention, state of mind or belief. As Lord Browne-Wilkinson pointed out in R. v Kearley:

"Any action involving human activity necessarily implies that the human being had reasons and beliefs on which his action was based".

Much relevant evidence could be excluded upon an analysis of it as an implied assertion. A further consideration is that an express assertion is much easier to recognise than an implied assertion: the former may be more readily detected by an advocate and excluded by the judge. We agree with the editor of Cross that "concentration upon the presence of an intention to assert provides the most defensible watershed between hearsay and nonhearsay both as a matter of logical coherence and of practical common-sense".

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Exceptions - Evidence of Confessions / Admissions

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A confession is a non-testimonial statement made by an accused person to a person in authority, in which the accused admits his guilt, whereas an admission is a non-testimonial statement made by an accused person to someone else, in which the accused admits his guilt.

Accordingly, the only difference between a confession and an admission is the status of the person to whom the inculpatory statement is made.

The distinction between a confession and an admission and the instances of admissions are considered (at 279) by Healy:

To constitute a "confession" . . . the admission must have been made voluntarily to a "person in authority" such as a [guard]. An inculpatory statement made to a person unconnected with "a person in authority" has the status of an admission .... Instances of bare admissions are scarce, given that the type of admission upon which prosecutions are brought tends to be confession statements obtained from the accused by persons in authority under more formal conditions amenable to proof.

The rule does not apply to confessions and admissions, as it is highly unlikely that a person would fabricate an inculpatory statement. That is to say, it is highly unlikely that a person would make an inculpatory statement unless it were true.

As Wigmore notes in Treatise on the American System of Evidence at Common Law:

Now, assuming the making of a confession to be a completely proved fact - its authenticity beyond question and conceded - then it is certainly true that we have before us the highest sort of evidence. The confession of crime is usually as much against a man's permanent interests as anything well can be . ... It carries a persuasion which nothing else does, because a fundamental instinct of human nature teaches each of us its significance.

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Exceptions - Evidence of Res-gestae Statements

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Res gestae means "things done" and or "exploits" . It is said that if a statement was part of the res gestae, evidence of the statement is admissible for the purpose of proving that the statement is true.

A statement may be relevant to a fact in issue because it throws light on it by reason of time, place or other circumstance, because it is part of the res gestae, an unmeaning term which, according to Sir Frederick Pollock, "merely fudges the truth that there is no universal formula for all kinds of relevancy".

In Evidence, Cross noted Lord Blackburn's remark, "[i]f you want to tender inadmissible evidence, say it is part of the res gestae" .

The res gestae exception to the rule permits the admission of evidence of a spontaneous statement that throws light on relevant contemporaneous conduct by reason of time, place or other circumstance for the purpose of proving that the statement is true.

The reasoning behind the exception is twofold. In the first instance, a person who makes a spontaneous statement is unlikely to be engaged in concoction or distortion. In the second instance, it would be artificial to require the jury to ignore the spontaneous words of a person where evidence of his observed contemporaneous conduct would be admissible.

In Evidence (Thomson Round Hall, 2002), Cannon and Neligan identify the following sub-categories to the res gestae exception:

(a) Spontaneous statements made by a participant in or observer of relevant conduct.
(b) Spontaneous statements made by a person to explain accompanying conduct.
(c) Spontaneous statements made by a person relating to his state of mind.
(d) Spontaneous statements made by a person relating to physical sensations.

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R. v Bond [1906]

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Kennedy J: "[e]vidence is necessarily admissible as to acts which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances, and so could not be excluded in the presentment of the case before the jury without the evidence being thereby rendered unintelligible"

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Exceptions to the Rule - Res Gestae - Spontaneous Statements made by a Participant in or Observer of Relevant Conduct

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In Evidence, McGrath observes:

Statements concerning an event in issue, made in circumstances of such spontaneity or involvement in an event that the possibility of concoction, distortion or error can be disregarded, are admissible as evidence of the truth of their contents.

The rationale for the admission of this category of out-of-court statements is evident from the formulation of the exception-they are made in circumstances where the declarant's mind is so dominated by a startling or overwhelming event that the statement is a spontaneous and instinctive reaction, made without any opportunity for the declarant to devise a false statement.

Historically, the courts applied this res gestae exception only if the statement was made at exactly the same time as the relevant conduct. This strict approach had the potential to result in injustice - R -v- Beddingfield (1879). The rule has therefore been relaxed somewhat in modern times - Ratten -v- R

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R v Bedingfield (1879)

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It was alleged that the accused, whose name was Harry, had killed the deceased by slitting her throat. He maintained that she committed suicide.

The deceased had walked 20 yards out of a room in which the
accused was subsequently found and said, "See what Harry has done!" It was held that evidence of this statement did not benefit from this res gestae exception, as the statement had been made after the relevant conduct had taken place .

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R v Andrews [1987]

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The deceased had opened his door to two men, who stabbed him. Minutes later, in response to police questions, the deceased told the police the names of his assailants.

The House of Lord's deemed the deceased's statement admissible as forming part of the res gestae. Lord Ackner set out the relevant principles:

(1) The primary question which the judge must ask himself is - can the possibility of concoction or distortion be disregarded?

(2) To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

(3) In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus, the judge must be satisfied that the event which provided the trigger mechanism for the statement was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

(4) Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal, the defence relied on evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely a malice which resided in him against 0' Neill and the appellant because, so he believed, 0' Neill had attacked and damaged his house and was accompanied by the appellant, who ran away, on a previous occasion. The judge must be satisfied that the circumstances were such that, having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

(5) As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.

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R v Carnall (1995)

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Applied Andrews (1987). Where statements made by the deceased more than an hour after he had been attacked, badly beaten and stabbed were held to have been properly admitted notwithstanding the lapse of time. For the Court of Appeal, Taylor LCJ stated:

We do not consider that the time factor, in regard to when a statement claimed to be
part of the res gestae, is made, is conclusive. That much appears from the passage we have quoted from Lord Ackner [in R v Andrews [1987]]. We also note that in R v O'Shea (Unreported, Court of Appeal, 24th July, 1986) the period which had elapsed before the statement in question was made after the event was of the order of an hour. Although it is true that the issues in that case were different, the lapse of time does show that it is not necessary that the evidence claimed to be part of the res gestae should have occurred at, or within minutes of, the event which precipitated it. It must be a matter for the trial judge in any given case to look at all the circumstances. The crucial question is whether there is any real possibility of concoction or distortion, or whether the judge feels confident that the maker of the statements was at the time dominated in his thoughts by the event which had occurred so that what he said could be regarded as unaffected by ex post facto reasoning or fabrication.

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The People (AG) v Crosbie & Anor. (1966)

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The applicants, together with two other accused, were charged with the murder of the deceased. The charge arose out of a fight which developed at the "read" room at the Dublin Docks in the course of which the deceased was stabbed by Crosbie.

Within a minute of being so stabbed, the deceased said, when Crosbie (but not any of the other accused on the evidence) was standing near him, "he has a knife, he stabbed me". The appellants were convicted of the manslaughter of the deceased. On an application by both of them for leave to appeal against conviction it was held by the Court of Criminal Appeal, in that the words spoken by the deceased were admissible against all the accused, although it was hearsay evidence, because it formed part of the criminal act for which the accused were being tried.

For the Court of Criminal Appeal, Kenny J said:

The Court is of opinion that evidence of the statement made by [the deceased] immediately after he had been stabbed by Crosbie was admissible in evidence against all the accused, although it was hearsay, because it formed part of the criminal act for which the accused were being tried or for those who prefer to use Latin phrases, because it formed part of the res gestae.

Having considered a number of English authorities, including R v Christie [1914] and Teper v R [1952], Kenny J said:

The words spoken by [the deceased] were spoken within one minute of the stabbing. They related directly to the incident which was being investigated (the stabbing), and they were spoken immediately after it. If the words of Lord Normand are adopted, the words were so clearly associated with the stabbing in time, place and circumstances that they were part of the thing being done and so an item or part of real evidence and not merely a reported statement.

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The People (DPP) v Lonergan [2009]

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This case concerned the admissibility of evidence of a deceased person's statement some 10 minutes after he had been stabbed. Having conducted a review of the authorities, Kearns J, for the Court of Criminal Appeal, said:

... this court does not see the decision in The People (Attorney General) v Crosbie [1966] as being in conflict with the decision of the Privy Council in Ratten v R [1972] or the decision of the House of Lords in R v Andrews [1987], albeit that those decisions carry the reasoning in The People (Attorney General) v Crosbie somewhat further.

The court is satisfied that the more evolved formulation of principle set out by Lord Ackner does no more than elaborate the rationale for the views expressed in The People (Attorney General) v Crosbie. The composite approach adopted by the trial judge, which gave due weight to both the requirement of contemporaneity and the possibility of concoction or fabrication, appear to this court to represent the correct approach to this issue. It would be quite wrong to hold that admissibility should be determined by reference solely to a given time period as to do so would lead to arbitrary and unfair results.

Time in this context is an important factor but not a determinant. The true importance of the requirement of contemporaneity is to eliminate the possibility of concoction. Where it is clear that no such opportunity existed on the facts of a given case it would be quite wrong to exclude statements on some arbitrary time basis. It is more a matter of factoring in both components when deciding whether or not to admit such statements as part of the res gestae. In every case the trial judge will have to exercise his discretion having regard to the particular circumstances of the case. In the instant case it was never put or suggested to any of the witnesses that the statements as having been made by the deceased were not in fact so made. No alternative version of events or no other possible perpetrator was possible on the prosecution evidence other than that the accused had killed his brother. No motive for concocting or fabricating evidence was suggested to any of the witnesses, nor was any evidence led by the defence to supply any such motive.

Furthermore, counsel for the accused has not really challenged the admissibility of the statements made by the deceased in the immediate aftermath of the stabbing. The challenge is effectively confirmed to the statements made by Michael Lonergan following the return of Emmet Coffey to the dwelling house, following his chase of the accused down the street. The court is entirely satisfied that the statements made some ten minutes after the stabbing were correctly admitted. They formed part of the same transaction, were sufficiently contemporaneous and furthermore, the court is satisfied that there was no opportunity on the part of Michael Lonergan to concoct or fabricate an explanation, and indeed no motive for his having done so was ever identified.

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Exceptions to the Rule - Res Gestae - Spontaneous Statements to explain accompanying relevant Conduct

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The conduct must be relevant. In comparison, in Cullen v Clarke [1963] (SC), it was held that evidence of a statement made by a person who had interviewed the plaintiff for a job explaining why he would not hire him was admissible under this res gestae exception. The plaintiff was seeking compensation for loss of earnings as a result of injuries he had received at work.

The Supreme Court held that as the act of refusing work was relevant to an issue raised at trial, viz. the fact that the plaintiff was unable to obtain work, the statement accompanying and explaining that act was admissible under this res gestae exception .

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Exceptions to the Rule - Res Gestae - Spontaneous statements made by a person relating to his Contemporaneous State
of Mind

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This res gestae exception will operate if the state of mind of the person who made the statement is relevant. The reasoning behind this res gestae exception is that of necessity. The best evidence of a person's state of mind at a particular point in time is evidence of a spontaneous statement made by him at that time relating to his contemporaneous state of mind.

Perhaps the most important type of statement, evidence of which may be admitted under this res gestae exception, is a statement relating to the intention of the person who made it or example, a witness' testimony that he heard the accused shout at the victim that he was going to kill him may be admissible under this exception.

It should also be noted that in addition to being admissible as evidence that a particular intention existed at the time the statement was made, evidence of such statements may also be admissible as evidence of future intention. As McGrath notes in Evidence:

"a statement of intention furnishes circumstantial evidence of the carrying into effect of the declaration by the declarant which may, depending on the circumstances, be entitled to very little or a great deal of weight".

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The People (DPP) v Murphy (2003)

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The Court of Criminal Appeal held that evidence of a statement is admissible under this res gestae exception if, having regard to the time at which the statement was made, it can be regarded as "the spontaneous and unrehearsed expression of contemporary feelings".

The defence sought to adduce evidence of a telephone conversation that the accused had had with his father some hours after the alleged crimes. For the Court of Criminal Appeal, Hardiman J said:

... Mr. Murphy had a telephone conversation with the applicant, the contents of which were sought to be admitted in evidence. Objection was taken to this by the prosecution and a voir dire was held. Mr. Murphy said that ... he received a phone call from Clifden Garda Station. This was in response to his previous calls to the station. A garda told him that he would be able to speak to his son and he was about to put him on the phone. Mr. Murphy said that in answer to a question as to how he was, the applicant said "I am sorry, Dad. I told them what I did". The father asked what did he tell them and the applicant said "I told them I started the fire". The father then said "What did you do to start the fire? How did the fire begin, Alan?". The applicant said "I don't remember, Dad". The father then asked why he had told them that he had started the fire to which the applicant replied "I am sorry, Dad, I don't remember what I did, but something in the back of my head tells me that I did it". The father then advised him to consult a solicitor and made arrangements for his own visit.

... By th[e] time [of this conversation], the applicant had made several statements to the Gardai on Inishboffin, had been arrested ... and taken to Clifden Garda Station. He had been interviewed there and had himself written a note entitled "To whom it concerns". He was interviewed again ... and following this interview he made a statement ...

The statement made by the applicant to the father was open to the obvious objection that it was hearsay. The rule against hearsay has been formulated as follows in the classic work, "Cross on Evidence":-

"An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted".

This formulation was approved in the House of Lords in R v Sharpe [1998] There are a number of reasons underlying the policy of excluding such evidence. Amongst the most significant is that its admission would work an injustice to the other party who would usually be unable to challenge the truth of what was said by crossexamination since the person reporting the assertion could only say what he was told and will not usually know the reasons for it or, very often, whether it is true or not. That would have been so in this case. It is also noteworthy, in the circumstances of the present case, that the statement sought to be admitted was the statement of the defendant who could, of course, have given direct evidence of the facts stated to the father had he wished to do so. He elected not to do so, and had done that at the time the hearsay statement was sought to be put in evidence. If he had given evidence to the same effect, and been contradicted by the prosecution, he might have introduced the conversation with his father as a prior consistent statement, admissible to rebut the suggestion of afterthought.

[The defence] contended for the admissibility of what was said to the father on two grounds. The first was that it was relevant to a fact in issue and was therefore original evidence. Alternatively if it was to be regarded as hearsay it should nonetheless have been admitted, not to prove the truth of what was said but merely to prove that it was said. The sense in which the evidence was alleged to have been relevant to a fact in issue was that it was relevant to show his state of mind at the time of the phone call and "to infer something about his state of mind at an earlier period, by way of supporting the contention that there was a lack of mens rea or of the capacity to form mens rea".

A good deal of argument on this point at the trial was conducted in the context of the exposition of the hearsay rule and the exceptions to it by Mr. Justice Kingsmill Moore in Collin v Clarke [1963]. The learned trial judge's judgment follows the exceptions to the hearsay rule set out there.
The only relevant exception was expressed by Kingsmill Moore J., with reference to an earlier English case, in the following way:-

"Wherever it is material to prove the state of a person's mind, or what was passing in it, and what were his intentions, there you may prove what he said, because this is the only means by which you can find out what his intentions were".

The learned judge continued as follows:-

" ... The admission of evidence of words spoken by a person who was not a witness in order to prove the state of his mind is not a transgression of the general hearsay rule [but] must I think be confined to cases where such words of a spontaneous or unrehearsed expression of contemporary feelings, words which reveal rather than declare a condition of the mind".

In our opinion, the words spoken insofar as they relate only to the applicant's state of mind at the time of the phone conversation, are simply irrelevant. Insofar as they relate to that state of mind as something from which an inference as to his staJe of mind on an earlier occasion may be drawn, they fail to meet the test of the exception to the hearsay rule. Having regard to the time at which they were spoken they cannot be regarded as the "spontaneous and unrehearsed expression of contemporary feelings", whether in relation to his state of mind at the time of the arson or at the times when he made incriminating statements. The words spoken in the telephone conversation are
contemporary with neither of these things. Moreover, from the point of view of any of the exceptions to the hearsay rule, the words have no relevance whatever unless they are to be regarded as true.

They are therefore clearly inadmissible unless they can be said to be within the scope of what is sometimes referred to as the res gestae exception, which it is obvious they are not.

Front 31

Exceptions to the Rule - Res Gestae - Spontaneous Statements made by a Person relating to a contemporaneous
physical sensation

Back 31

This res gestae exception will operate if the physical sensation of the person who made the statement is relevant. Again, the basis of this exception is that there is no way of proving such a sensation other than by admitting evidence statements made the person who is experiencing it. The statement must have been made contemporaneously with the feeling of the sensation, although, in R v Black (1922) 16 Cr App R 118, it was held that evidence of a statement made only a day after the sensation was experienced was admissible.

This exception has, however, been criticised on the grounds that it only allows evidence of statements to be admitted for the purpose of proving the physical sensation. Such evidence is not admissible to prove the cause of such sensations.

Front 32

R v Black (1922)

Back 32

It was held that evidence of a statement made only a day after the sensation was experienced was admissible.

Front 33

Aveson v Lord Kinnaird (1805)

Back 33

It was held there that a statement made by the deceased indicating that she was in good health at the time an insurance policy was taken out on her life was admissible.

Front 34

Donaghy v Ulster Spinning Co.
Ltd (1912)

Back 34

It was held that the statement of a victim of compression of the brain, to the effect that he had been injured at work, was inadmissible under this exception.

Front 35

Exceptions to the Rule - Evidence of Statements by deceased Persons - Dying Declarations

Back 35

This exception to the rule permits the admission of evidence of a statement of a victim of murder or manslaughter for the purpose of proving the cause of death and I or the identity of the killer. The victim must have been labouring under a hopeless and settled expectation of death at the time at which he made the statement.

The rationale for this exception is that a person who is labouring under a hopeless and settled expectation of death would be most unlikely to fabricate his last words.

In order for a statement to be admissible under this exception to the rule, the following
conditions must be satisfied:
(a) the statement must relate to the cause of death I identity of the killer,
(b) the deceased must have been competent when he made the statement,
(c) the accused must be on trial for murder or manslaughter, and,
(d) the deceased must have been labouring under a hopeless and settled expectation of
death at the time at which he made the statement.

Regarding the fourth requirement, the trial judge may refuse to admit evidence of the statement under this exception if he is satisfied that the deceased held out hope of recovery, no matter how small.

One thing that is somewhat unclear in this area, however, is whether it is necessary that the deceased expressly indicated that he knew that he was dying.

Front 36

R v Woodcock (1789)

Back 36

Per Eyre CB dying declarations are "declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice".

The statement was admitted under this exception to the rule in spite of the fact that the deceased had not expressed any view as to whether or not she knew she was dying.

Front 37

R v Jenkins (1869)

Back 37

The deceased had amended a statement in her will from "with no hope of my recovery" to read "with no present hope of my recovery ..."

Kelly CB held that this phrase was evidence that the deceased held out some hope of survival and thus the statement regarding the cause of her death was inadmissible.

Front 38

R v Mooney (1851)

Back 38

Evidence that the deceased had been told by her doctor that she was dangerously ill and that a clergyman had been sent for was insufficient to prove that she was under a hopeless and settled expectation of death. Pigot CB
held that declarations made by her against her husband before she died could not be admitted, as she had failed to tell anyone that she knew she was dying.

Front 39

R v Stephenson (1947)

Back 39

Where the deceased makes a statement in response to leading questions or under some pressure, this will not affect the admissibility of the statement under this exception to the rule, although the trial judge should instruct the jury that it will have an effect on the statement's weight.

Front 40

Exceptions to the Rule - Evidence of Statements by deceased Persons - Evidence of Statements against pecuniary or proprietary Interest

Back 40

Healy notes (at 274), "[t]his exception is now of most relevance to civil proceedings involving disputes over land or contracts".

Such evidence is admissible if Lalor v Lalor (1879):

(i) the deceased had personal knowledge of the facts contained in the statement, and

(ii) the deceased knew that the statement was against his interest.

The exception is limited to statements against the deceased's pecuniary or proprietary interest and does not extend to admissions of criminal liability- R v Blastland (1986)

Front 41

R v Rogers [1994]

Back 41

It was held that evidence of a deceased person's statement against his pecuniary or proprietary interest may be admissible for the purpose of proving that the statement is true. The rule against hearsay evidence does not apply to such evidence, as such a statement is likely to be true.

Front 42

R. v Blastland [1986]

Back 42

The exception is limited to statements against the deceased's pecuniary or proprietary interest and does not extend to admissions of criminal liability.

Front 43

Lalor v Lalor (1879)

Back 43

Such evidence is admissible if

(i) the deceased had personal knowledge of the facts contained in the statement, and

(ii) the deceased knew that the statement was against his interest.

Front 44

R v Rogers [1995]

Back 44

Statements against pecuniary interest include an acknowledgement by a person that he owes a debt.

Front 45

Richards v Gogarty (1870)

Back 45

Statements against pecuniary interest include an acknowledgement by a person that he has received monies that are owed to another.

Front 46

Flood v Russell (1891)

Back 46

The deceased stated that her husband had made a will before he died, in which he
had given her only a life interest in his estate. Were this statement true, the deceased would have inherited less. Had she remained quiet she would have inherited more on intestacy.

Front 47

Exceptions to the Rule - Evidence of Statements by deceased Persons - Evidence of Statements about Pedigree

Back 47

Evidence of a deceased person's statement about pedigree may be admissible for the purpose of proving that the statement is true. According to Healy, "[t]his exception rested upon an assumption that members of a family talk amongst themselves in a truthful manner where no interest is to be gained by mistruth".

Front 48

Haines v Guthrie (1884)

Back 48

Statements as to pedigree evidence may be relevant in proceedings, in which paternity is at issue.

Front 49

Palmer v Palmer (1885)

Back 49

Statements as to pedigree evidence may be relevant in proceedings, in which inheritance rights are at issue

Front 50

Butler v Mountgarret (1859)

Back 50

The statement as to pedigree must have been made ante litum motam, ie, before the dispute about pedigree arose.

Front 51

In Re Holmes: Beamish v Smeltzer [1934]

Back 51

The statement as to pedigree must have been made by a blood relative or spouse of a blood relative of the person whose pedigree is disputed.

Front 52

Exceptions to the Rule - Evidence of Statements by deceased Persons - Evidence of Statements as to the Contents of the Deceased's Will

Back 52

In Sugden v Lord St. Leonards (1876) (HL), the House of Lords held that evidence of statements made by a testator, both before and after the execution of his will, are, in the event of its loss, admissible as secondary evidence of the will's contents.

Front 53

Sugden v Lord St. Leonards (1876)

Back 53

The House of Lords held that evidence of statements made by a testator, both before and after the execution of his will, are, in the event of its loss, admissible as secondary evidence of the will's contents.

Front 54

Exceptions to the Rule - Evidence of Statements by deceased Persons - Evidence of written Statements made in the Course of a Duty

Back 54

Healy observes (at 274) that this exception " ... rests upon an assumption that it is significantly less likely, where information is made or recorded for the purposes of work, that the declarant lied or erred".

The statement must relate to the performance of the deceased's duty, and the deceased must have been under a duty to record or report the statement - R v O' Meally [1952] VLR 499.

The statement must have been one of fact(s), not opinion(s) and must have been made
contemporaneously with the performance of the duty. The deceased must have had personal knowledge of the fact(s) contained in the statement.

Front 55

R v O' Meally [1952]

Back 55

The statement of the deceased person, made in the course of performing a duty, must relate to the performance of the deceased's duty, and the deceased must have been under a duty to record or report the statement.

Front 56

Ryan v Ring (1889)

Back 56

It was held that a baptismal register was not admissible under this exception as evidence that the parents of the baptised child were married, as there was no evidence that the priest who baptised the child (and recorded that baptism in the baptismal register) had married the child's parents.

Front 57

R v McGuire (1985)

Back 57

A deceased scientific officer's
observations made at the scene of a fire for the purpose of proving how the fire started was admitted.

Front 58

Harris v Lambert HC [1932]

Back 58

A deceased solicitor's notes taken while with a client were admitted.

Front 59

Exceptions to the Rule - Evidence of Statements in public Documents

Back 59

The public officer must have been under " ... a judicial or quasi-judicial duty to enquire" -per Lord Blackburn, Sturla v Freccia (1880) 5 App Cas 623 (HL) (at 643).

The public officer must have had personal knowledge of the fact(s) contained in the statement. The statement must have been made by the public officer in the course of his duty to record it. The document must be kept in a place to which the public is permitted to have access.

Evidence is admissible under this exception, as it is reliable. Its reliability may be presumed from the manner in which the statement was made and the nature of the document in which the statement is contained. Furthermore, it would be impractical and unnecessary to require the public officer to testify about the statement, as he could not reasonably be expected to recollect the matters described in the document- R v Halpin [1975]

Front 60

Sturla v Freccia (1880

Back 60

"Public document" was defined (at 643) by Lord Blackburn in Sturla v Freccia (1880) 5 App
Cas 623 (HL) as "a document that is made by a public officer for the purposes of the public
making use of it and being able to refer to it".

Front 61

Sturla v Freccia (1880

Back 61

The public officer must have been under " ... a judicial or quasi-judicial duty to enquire" -per Lord Blackburn

Front 62

R v Halpin [1975]

Back 62

it would be impractical and unnecessary to require the public officer to testify about the statement, as he could not reasonably be expected to recollect the matters described in the document.

Front 63

Irish Society v Bishop of Derry (1846)

Back 63

Statements in a bishop's return to the Exchequer relating to advowsons in his diocese were deemed admissible as a public document.

Front 64

Minister for Defence v Buckley [1978]

Back 64

A map of the Curragh prepared to show divisions for the purposes of the Curragh of Kildare Act, 1969 was deemed admissible, as being a public document.

Front 65

Criminal Evidence Act, 1992

Back 65

Part II governs the admissibility of documentary evidence.

Front 66

Criminal Evidence Act, 1992, Section 5 (1)

Back 66

5 (1) ... information contained in a document shall be admissible in any criminal proceedings as evidence of any fact therein of which direct oral evidence would be admissible if the information -

(a) was compiled in the ordinary course of a business,


(b) was supplied by a person (whether or not he so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and

(c) in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.

It should be noted, however, that, according to s. 5 ( 3), s. 5 (1):

... shall not apply to -

(a) information that is privileged from disclosure in criminal proceedings,

(b) information supplied by a person who would not be compellable to give evidence at the instance of the party wishing to give the information in evidence by virtue of this section, ...

Front 67

Criminal Evidence Act, 1992, Section 8 (1)

Back 67

Section 8 ( 1) enacts, "[i]n any criminal proceedings information or any part thereof that is admissible in evidence by virtue of section 5 shall not be admitted if the court is of opinion that in the interests of justice the information or that part ought not to be admitted".

Front 68

Criminal Evidence Act, 1992, Section 8 (2)

Back 68

Section 8(2) enacts:

In considering whether in the interests of justice all or any part of such information ought not to be admitted in evidence the court shall have regard to all the circumstances, including -

(a) whether or not, having regard to the contents and source of the information and the circumstances in which it was compiled, it is a reasonable inference that the information is reliable,

(b) whether or not, having regard to the nature and source of the document containing the information and to any other circumstances that appear to the court to be relevant, it is a reasonable inference that the document is authentic, and

(c) any risk, having regard in particular to whether it is likely to be possible to controvert the information where the person who supplied it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.

Front 69

Criminal Evidence Act, 1992, Section 8 (1)

Back 69

Section 8 ( 3) of the 1992 Act enacts, "[i]n estimating the weight, if any, to be attached to information given in evidence by virtue of this Part, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise".

Front 70

Criminal Evidence Act, 1992, Section 7

Back 70

Section 7 also requires that where either party to proceedings wishes to rely on evidence admissible under s. 5, that party must give notice to the other party of their intention to do so at least 21 days before the commencement of the trial. If the prosecution seeks to adduce such evidence in criminal proceedings, this notice ordinarily takes the form of a certificate issued pursuant to s. 6( 1), Criminal Procedure Act 1967.

Front 71

Children Act, 1997

Back 71

Part III applies to civil proceedings concerning the welfare of a child (or an adult who has a mental disability to such an extent that it is not reasonable possible for the person to live independently).

Front 72

People (DPP) v Colm "Slab" Murphy (2005)

Back 72

(Court of Criminal Appeal Kearns, MacMenamin and Clarke JJ.) , the accused was convicted on January 22, 2002 of conspiracy to cause an explosion of a nature likely to endanger life or cause serious injury to property contrary to s.3 of the Explosives Substances Act 1883 , as substituted by s.4 of the Criminal Law (Jurisdiction) Act 1976 , and was sentenced to 14 years' imprisonment.

The conviction arose out of the events that have colloquially been coined the 1998 “Omagh bombing'. The prosecution case was to the effect that the car in which the bomb was placed had been stolen in Carrickmacross, Co. Monaghan, in the early hours of August 13, 1998 and was thereafter brought to Dundalk, where it was loaded with a substantial quantity of explosives to which was attached a detonating device, thereby constituting a large bomb.

The prosecution further contended that on Friday, August 14, 1998, the day before the bombing, the accused, who has a building contracting business, borrowed a mobile phone from his foreman, Patrick Terence Morgan, adopting a subterfuge as to the purpose for so doing, stating that his own was “on the blink”, and gave that mobile and his own mobile to one Searnus Daly, described by the court as a dissident republican terrorist.

Subsequently, however, Mr Morgan completely contradicted his earlier evidence, and upon giving further testimony to the court, that witness stated that he had in fact left the mobile phone in an open glove compartment in his van and that he discovered his mobile telephone was missing “at some stage” during Friday afternoon. The court rejected this purported retraction of evidence.

Part of the prosecution case against the accused centred around the use of mobile telephone records, and it was the use of those records that constituted one of the grounds of appeal before the Court of Criminal Appeal, in that it was put forward that the Special Criminal Court had erred in admitting the telephone records as evidence.

Insofar as the telephone evidence was concerned, the trial court decided that it could accept the veracity and accuracy of the telephone evidence presented beyond reasonable doubt and that the accuracy of the records had not been challenged by the defence. The phone records showed the times and duration of calls made from the accused's phone to the Morgan phone, including calls made on the day of the bombing. Crucially, the records also showed the approximate location of the caller insofar as the operating mobile telephone mast, through which each call was conducted, was also listed.

The Court of Criminal Appeal, giving judgment on the admissibility of the phone records, held that the fact that a recording is produced mechanically without human intervention makes no difference to its general admissibility in evidence, citing Statue of Liberty ; The Sapporo Maru M/S (owners) v Steam Tanker Status of Liberty (Owners) [1968] 1 W.L.R. 739 . In that decision, it was argued that a film of radar echoes recorded by a shore radio station which were themselves mechanically produced without human intervention was inadmissible hearsay. That submission had been rejected, the court stating that:

“If tape recordings are admissible, it seems that a photograph of radar reception is equally admissible or indeed, any other type of photograph. It would be an absurd distinction that a photograph should be admissible if the camera were operated manually by a photographer but not if it were operated by a trip or clock mechanism.”

The Court of Criminal Appeal adopted that approach and considered that evidence of the type at issue in the instant case came within the category envisaged by s.5(1) of the Criminal Evidence Act 1992 , which provides that information contained in a document shall be admissible in any criminal proceedings as evidence of any fact therein of which direct oral evidence would be admissible if the information—

(“a) Was compiled in the ordinary course of a business;

(b) Was supplied by a person (whether or not he so compiled it and is identifiable) who had, or may reasonably be supposed to have had personal knowledge of the matters dealt with; and

(c) In the case of information in non-legible form that had been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.”

The Court of Criminal Appeal referred to decisions of the Court of Appeal, including the decision in R v Wood[1982] 767 Cr.App.Rep. 23 , where evidence was properly allowed of computer results. The computer was used as a calculator and, as such, did not itself contribute to its own knowledge but merely carried out a sophisticated calculation that could not have been done manually. Lord Lane C.J. was accordingly of the opinion in that case that the computer printout was not hearsay but was more properly to be treated as a piece of real evidence.

Further, the Court of Criminal Appeal referred to Castle v Cross [1985] 1 All E.R. , where a divisional court held that intoximeter evidence was admissible on the basis that it was a tool, albeit a sophisticated one, and that in the absence of any evidence that it was defective, the printout, the product of a mechanical device, fell into the category of real evidence.

The Court of Criminal Appeal endorsed the principles set down in those two decisions and ruled that those principles apply “not only where the device in question processes information supplied to it, as in R. v Wood and Castle v Cross , but also where the device gathers information”.

An example of the gathering of information in this context could be found in R. v Spiby [1990] 91 Cr.App.Rep. 186 , where the printout from a computerised machine was used to monitor telephone calls and automatically recorded information such as the numbers to which the calls were made and the duration of the calls. That evidence was admitted as real evidence on account of the fact that such information was recorded by mechanical means without the intervention of the human mind.

However, these authorities, noted the Court of Criminal Appeal, must now be read in light of the decision in R. v Corcoran [1993] C.L.R. 48 , in which it was held that before a judge can decide whether computer printouts are admissible, whether as real evidence or as hearsay, it is necessary to call appropriate authoritative evidence to describe the function and operation of the computer.

In the instant case, the mobile telephone records were a printout, the product of a mechanical device, and even in the absence of human intervention were held admissible.

Front 73

The Bankers’ Books Act, 1879

Back 73

The Bankers’ Books Act, 1879 facilitates banks in legal actions by exempting them from certain inconveniences of the hearsay rule. The operative provision is section 3 which provides that a copy of any entry in a banker’s books shall be received in evidence as prima facie evidence of such entry and of the matters, transactions and accounts therein recorded. Without this concession the entry would not be proof of the matters recorded, and further, even if it were, a copy of such an entry would be unacceptable in court as not being the best evidence available. (cf. Law Reform Commission Working Paper No. 9—The Rule against Hearsay (1980) particularly at p. 169).